DELIVERED ON 19 MAY 1983 (*1)

Mr President,

Members of the Court,

1.This action, which was brought on 13 June 1980, is based on a series of claims concerning establishment, payment of salary, pension rights, insurance contributions and compensation for termination of her employment contract as a member of the establishment staff made against the Commission by Miss Maria Mascetti, an employee of the Ispra Joint Research Centre.

The facts of the case have already been summarized in detail by Mr Advocate General Capotorti in the opinion which he delivered on 18 June 1981. Accordingly, I shall merely refer to the subsequent course of events, commencing with the Court's interlocutory judgment of 14 July 1981. The Court held on that occasion that the application was admissible “with regard to the claim relating to seniority in the step” (paragraph 10 of the decision in Case 145/80 Mascetti v Commission [1981] ECR 1975). However, the Court held that the other claims were inadmissible as they had been submitted out of time.

In the light of that judgment, the Commission proposed on 14 October 1981 to insert a term in Miss Mascetti's contract of employment concluded on 24 April 1979 backdating her seniority in Step 8 of Grade C 1 to 1 December of the previous year. At the same time, in an application on a procedural issue under Article 91 of the Rules of Procedure, the Commission requested the Court to terminate the written procedure, to refrain if necessary from initiating the oral procedure, to declare that the application had become devoid of purpose since the applicant no longer had an interest in pursuing the proceedings, to declare that is was unnecessary for the Court to give a decision on the points at issue and to make an order as to costs on an equitable basis, due regard being had to the fact that in the previous dispute between the parties almost all of the claims submitted by Miss Mascetti had been declared inadmissible.

Since the applicant persisted in her view that the proceedings should be continued, the Court, by order of 6 May 1982, deferred its decision on the application for a declaration that it was unnecessary to give a decision on the points at issue pending consideration of the substance of the case. For its part, the Commission requested the Court primarily to declare that the application had become devoid of purpose on the ground that the applicant no longer had any interest capable of being furthered by legal proceedings and to declare that it was unnecessary to give a decision on the points at issue or, in the alternative, to dismiss the application as unfounded and, in any event, to order the applicant to pay the whole of the costs.

2.To begin with, I shall deal with the question whether the applicant has an interest in continuing the proceedings, bearing in mind that the Court's interlocutory judgment has substantially narrowed the scope of the dispute. The only issue still to be resolved is Miss Mascetti's seniority in the step in Grade CI.

On 1 October 1973, that is to say before criminal proceedings were initiated against her, the applicant was classified in Step 6 of Grade C 1. The applicant contends that her employment relationship has continued without interruption and accordingly seeks classification in Step 7 as from 1 October 1975 and classification in Step 8 as from 1 October 1977. The Commission, however, which has, to say the least, behaved erratically in its dealings with the applicant, made several different proposals to her. By letter of 23 March 1977, it offered to classify her in Step 7 of Grade C 1 as from 30 October 1976. Five months later, amending the terms of the contract concluded on 30 November 1978, the Commission recognized her seniority in the grade as from 30 October 1976 and her seniority in Step 7 as from 1 November 1977. Finally, in the light of the Court's judgment, the Commission offered to classify her in Step 8 as from 1 December 1978.

Against that background, I am not at all convinced that the latest offer made to Miss Mascetti has deprived her of any interest in having her application adjudicated upon by the Court. It must be stated, in the first place, that the offer does not resolve all of the outstanding issues in the dispute and satisfies the applicant's claim only in part. However, even if that offer were deemed to satisfy Miss Mascetti's claim in every possible respect, the fact remains that it was not accepted by her, which makes it impossible to say that the parties settled their differences by agreement and that the dispute was thereby brought to an end.

Finally, there is the applicant's interest in a decision on the hitherto undecided question of costs, and that in itself is a sufficient reason for regarding her application as legitimate.

3.Consideration of the substance of the case is therefore unavoidable and, since it concerns the backdating of the applicant's seniority in the step in Grade C 1, it entails examination of the question whether or to what extent Miss Mascetti's absence from her department affected the continuity of her employment relationship.

I am of the opinion that the defendant's conduct viewed in its entirety implies recognition of such continuity. Miss Mascetti who fled abroad in order to escape a warrant for her arrest which subsequently proved to be unjustified, was deprived only of her salary. The administration made no decision to institute disciplinary proceedings against her or, still less, to terminate her employment. On the contrary, by letter of 23 March 1977, which was therefore written while the applicant was in hiding, the Commission proposed to employ her as a temporary servant under the transitional provisions contained in Regulation (EEC) No 2615/76 of 21 October 1976. That is significant because by virtue of those provisions proposals of that kind were to be made to members of the establishment staff in the employment of the institution on 30 October 1976 (that is to say during the period in which Miss Mascetti was in hiding) and also their contracts were to be terminated unless the proposals were accepted within six months.

Furthermore, that recognition of continuity did not end following the Court's judgement in the case. The offer made on 14 October 1981 presupposes recognition of Mascetti's right to be classified in Step 8 upon resumption of her duties. However, the Commission is even more explicit in its rejoinder in this phase of the proceedings when it assesses the effects of the circumstances which led Miss Mascetti to absent herself from the service. The defendant claims that, even if responsibility for it cannot be attributed to the worker, a supervening event which makes it impossible for an official to perform his duties ... entails a temporary suspension of the employment relationship. On the whole, I agree with that assessment and I am swayed by the arguments put forward by Mr Advocate General Capotorti to demonstrate that disputes of this kind can be settled by a wide application or an application by analogy, of Article 88 of the Staff Regulation (Opinion in Case 2/76 Mascetti [1976] ECR 1975 at p. 1982, in particular at p. 1985 et seq.).

Thus Miss Mascetti's absence from duty and the change in her status (transition from member of the establishment staff to temporary servant) have not affected the continuity of her employment relationship with the Commission. It follows that she must be classified in Step 8 of Grade C 1 as from 1 October 1977.

4.In the light of all the foregoing considerations, I propose that the Court declare (a) that the applicant has an interest in continuing the proceedings following the interlocutory judgment and (b) that the applicant is entitled to be classified in Step 8 of Grade C 1 from 1 October 1977.

As far as costs are concerned, regard being had in particular to the fact that the application has been partially successful, to the conduct of the parties during the proceedings and to the nature of the dispute, I consider it equitable that two-thirds of the costs should be borne by the parties in equal shares and that the remaining third should be paid by the Commission.

(*1) Translated from the Italian.